The Atlanta Lawyer August/September 2015

SLIP Student Essays Elonis v. United States By Harsha Sridhar Northview High School, Interned with Kilpatrick Townsend I n Elonis v. United States, the Supreme Court is faced with a formidable question: whether to accept the original jurisdiction’s and circuit court’s approval of a negligence standard when prosecuting an alleged perpetrator of a threat, or to contradict that decision and instead mandate a more demanding form of mens rea. By an 8-1 decision, the Court chooses the latter, determining the validity of a defendant’s threat cannot be judged by a mere standard of ‘reasonability’ while simultaneously declining to prescribe an alternative benchmark. While I agree with Justices Alito and Scalia that the majority’s decision in this case leaves its fair share of loose ends to be considered by judges and prosecutors, I commend the Court for protecting not only the rights of the petitioner, but all Americans who choose to express themselves on social media. The issues considered in Elonis center around the Facebook postings of Anthony Douglas Elonis (under the pseudonym “Tone Dougie”) and the ensuing federal investigation, arrest and prosecution. Elonis penned and published ‘rap’ lyrics which he himself admitted to be “violent”. His writing expresses desires to execute a mass shooting at an elementary school within a “ten mile radius”, murder state and federal law enforcement officers and see his ex-wife killed. Scattered throughout his postings are frequent reminders that he does not intend to actually carry out any of the acts discussed in his lyrics and that “art is about pushing limits.” After being notified by his former employer, the Federal Bureau of Investigation began monitoring Elonis’ social media profile, and when the content of Elonis’ posts continued, a grand jury indicted hion five counts of transmitting threats via interstate commerce, a federal offense pursuant to 18 U.S.C. 875(c). These events are undisputed by both parties, but the petitioner argues that a critical lapse occurred in the ensuing legal proceedings. At trial, Elonis asked for a jury instruction specifying that the Government had the burden of proving Elonis intended to communicate “true threat”. The judge instead instructed the jury to reach its verdict based on whether a reasonable person would have foreseen Elonis’ actions as communicating a threat. Subsequently, Elonis was convicted on four of the five counts. While the petitioner’s social media postings may have been in poor taste, the ‘reasonability’ standard used by the District Court and later supported by the Third Circuit is, from my 40 THE ATLANTA LAWYER August/September 2015 perspective, inappropriate. Although the respondent notes quite accurately that Section 875(c) does not explicitly demand that the prosecutor prove intent in order to make a conviction, I am not compelled by its subsequent argument - that Congress, which publishes updated versions of the United States Code periodically, did not intend for this factor to be considered by the jury. For most every conviction, a prosecutor must establish that the defendant had a guilty mind, aware that his behavior was criminal. The Court determined in Ragansky four decades before that a mens rea standard protected a foreigner who, equipped with a limited command of the English language, unintentionally made a threat against the President. Although Elonis has a greater understanding of his words than the foreigner, there is equally nonexistent proof that he intended his comments to contain the malicious meaning ascribed to them by the Government. This is not to say that the Government cannot or should not prosecute individuals who communicate their intention to harm others: however, it must present evidence to affirm the legitimacy or, in the words of the petitioner, “truth”, of the threat, documentation more substantive than a compilation of Facebook posts. Based on the context of his social media page, it is far more likely that Elonis was testing the extents of constitutionally protected free speech. The law should separate individuals such as the petitioner from men and women who, through their actions and words, present ample proof that they intend harm against an individual or entity. The Court largely agrees with this sentiment. Chief Justice Roberts, who writes on behalf of the majority, spends a significant portion of his decision dissecting the language of Section 875(c). The respondent notes that the statutes immediately preceding and following 875(c) make specific mention of an intent - the intent to extort. Thus, the lack of such wording would signify that proof of intent is not necessary. Meanwhile, the petitioner argues that the word ‘threat’ implies intent, and so it need not be specifically mentioned. While Justice Roberts rejects both of these premises, he nonetheless finds that Congress wrote Section 875(c) to accommodate multiple intents, not to exclude intent entirely. Roberts argues that an interpretation that excludes an implied duty to prove intent only serves to crimin

The Atlanta Lawyer August/September 2015 | Page 40